A San Marcos Police Department terminated for not being truthful on two occasions and a use-of-force violation remains back on the force, but is effectively unable to perform police duties after a decision by Hays County District Attorney Sherri Tibbe.

Officer Paul Stephens was indefinitely suspended last October over an incident where he used a baton against a woman who was not resisting and was not a physical threat, and for later making a false statement about the encounter in his report. However, an independent arbitrator ruled in June that the charges of charges of dishonesty and excessive force could not be substantiated, and Police Chief Howard Williams was bound by law to re-instate him.

But a June memo from Tibbe to Williams says that due to Stephens’ “history for dishonesty,” her office will be unable to call Stephens as a witness in any case and cannot prosecute any case in which he is an investigating officer. Stephens’ credibility problems could endanger cases when they go to trial, Tibbe argued, because her office is bound to disclose his history to defense attorneys.

Williams, who said today that he agrees with Tibbe’s decision, said that this means Stephens will remain on the force but can’t enforce the law or make arrests.

“She can’t put him on the stand,” Williams said. “A defense attorney would tear him up.”

This is the inevitable result when police chiefs are denuded of power to fire bad cops by civil service laws and arbitration requirements. This arbitrator reinstated a cop the District Attorney says so lacks credibility he can't testify in criminal cases any longer.

How much sense does it make for San Marcos to continue to pay a police officer who can't enforce criminal laws? But the arbitrator says he can't be terminated. So what's he supposed to do with his time every day? (A commenter at the Statesman suggested he "should be on permanent assignment to the Hays County animal shelter as the sole individual who cleans out the kennels.") As I wrote earlier about this case, this incident shows how "in Texas civil service cities, in most instances it's nearly impossible to fire bad cops no matter how badly they screw up. This guy's a statewide poster boy for that fact."

44 comments:

Anonymous
said...

I see an officer on perminate vandalism partol walking a beat inside the fence at local schools. On the 10 pm to 6 am shift, Wednesday through Sunday. Oh yes he will get to punch a key clock to verify that he indeed walks his assignment.

Texas Civil Service Laws need to be re-written or done away with. In many states, a Chief of Police or municipal board of public works can fire bad cops. Why should any law enforcement agency be forced to keep a cop that is bad? It tarnishes the entire police department and reflects poorly on those who do there job!

Grits, you're right, but the civil service changes need to be thought out carefully lest we get unintended consequences. In Dallas we have some ward-boss City Council members like Dwayne Caraway who want dedicated officers for their enforcement preferences. Absent civil service protection, he would have officers fired for insufficiently serving his political interests. That's surely true in many other municipalities.

Alan, actually Dallas is one of the cities (the largest in the state) that never opted into the state civil service code. The rules you're referencing were made at the city level, not Ch. 143 of the Local Government Code. And FWIW, as Chief Kunkle's tenure attests, NOT being under Ch143 makes it a lot easier to fire bad cops in Dallas than in cities under the state civil service code.

The arbitrator system in civil service should be limited to making sure the officer receives the appropriate due process rather than substituting their opinion for the Chief's. There are MANY other cases just like this one!

There needs to be some check on the power of police chiefs in this regard, and it needs to be a mechanism that is insulated from the political process.

7/30/2010 03:41:00 PM-----------------------------------Disagree. Totally. The Police Chief should be accountable to the Mayor and a board established by code that has appointees from the Mayor and City Council.

Who does an arbitrator answer to? Who is an arbitrator accountable to? NO ONE.

Let a city fire a cop, let the board I described either uphold termination or take it to civil court.

Have you ever lied about something before besides in a court of law? If you have, does that still make you credible just because you were not under oath or is just ok to lie about anything to anyone so long as you are not under oath?

Is that what seperates you from this officer, the fact you have lied before but not under oath?

Have you ever lied about something before besides in a court of law? If you have, does that still make you credible just because you were not under oath or is just ok to lie about anything to anyone so long as you are not under oath?

Is that what seperates you from this officer, the fact you have lied before but not under oath?

7/31/2010 09:38:00 AM-----------------------------------ACTUALLY, I THINK IT'S YOU THAT MISSES THE POINT. THE ISSUE IS NOT ABOUT PEOPLE WHO POST ON A BLOG, IT IS ABOUT A POLICE OFFICER WHO HAS TAKEN AN OATH. THERE IS A HUGE DIFFERENCE. COPS ARE NOT HELD TO THE SAME STANDARDS AS THE GENERAL PUBLIC AND IF YOU THINK THEY SHOULD BE...THAT WOULD BE ONE DANGEROUS PRECEDENT!

""Alan, actually Dallas is one of the cities (the largest in the state) that never opted into the state civil service code. The rules you're referencing were made at the city level, not Ch. 143 of the Local Government Code. And FWIW, as Chief Kunkle's tenure attests, NOT being under Ch143 makes it a lot easier to fire bad cops in Dallas than in cities under the state civil service code.""

and yet many of Kunkle's firings were overturned as well. Dallas's Civil Service may be slightly less bullet proof that the State version, but it still happens.

9:38, help me out here. I've got to be misunderstanding your post. You seem to be saying that, because evryone lies, perjury committed by a police officer is acceptable behavior. Furthermore, you are saying that the fact that the officer has previously committed perjury does not impact their credibility in the future. Is that really what you are trying to say? If so, you have one screwed up sense of morality and justice. It makes me think you are probably a law enforcement officer who has lied under oath. Is that the case?

When I hear people saying things like this, it makes me fearful for the future of our society.

By the way 9:38. I disagree with your premise. Some people are generally honest, while others are generally dishonest. No one is perfect and even someone who is generally honest may on rare occasion tell a lie. But, a person who is generally honest will not be dishonest about something that is important as what we are talking about here and would take the fact that they are under oath very seriously. There are many honest police officers out there. Unfortunately, there are also many dishonest police officers out there. Someone who would be dishonest in the type of situation we are talking about is, more than likely, a generally dishonest person. Its been my experience that if a person is dishonest in one area of their life (I'm talking about significant dishonesty, not just a little white lie), they are usually dishonest in other areas also.

Unfortunately, the older I've gotten, the more I've realized that there are many more people in the world who are generally dishonest than there are those who are generally honest. This masy sound a little jaded, or cynical, but the facts of what I've seen bear that out. Police officers are placed in a position of trust in our society and they should be among the most honest of us. If they are not, how can you expect that from anyone else.

Therei s a law that makes perjury a crime. When an officer commits perjury they are a criminal. Its that simple. Do we want criminals as police officers? Unfortunately, these days, there is no difference between the criminals and the cops. My apologies to all the good, honest officers that I know are out there, but, you really need to clean up your ranks. The officers of the Austin Police Department need to stand up and say they do not want a dishonest officer in their ranks. If they fail to do so, they are condoning the behavior and have a stain upon them all.

I said in my first post I don't take the side of the officer for his actions in both incidents he was involved in.

If you have lied before, you ain't no different than he is.

Setting a dangerous precedent? Maybe. Perhaps defense lawyers will start looking into the backgrounds of all witnesses, not just those who are suppose to uphold the law, and determine if those witnesses could be uncredible as well because they have lied before, cheated on income tax reports, cheated on a spouse, fired from a job because they have stolen from an employer and on and on and on.

Again, I don't take this officers side. The way some see it, you are fair game too because of your Harper Valley PTA hypocritical view.

You may be no different than him. But, I'm nothing like him. I think you have probably committed a similar offense and rationalized it because no one wants to see themselves as a bad person. If that's true, then you may be no different from this guy, but that doesn't mean everyone in the world is dishonest, like you and him.

So, is what you are saying basically is that we have all done something wrong, so we are all the same. I have used that same argument before in different contexts, arguing for forgiveness for people. For all have sinned... However, if you really believe that, then you would say that you and I are no different from all the people in prison who have done things wrong. Is that what you are saying? If so, then you and I are no different from the lowest scum in prison. Actually, I would agree with you on that. All of us are sinners and none of us are better than any other. Do you accept taht you are no better than the lowest scum in prison? Or do you only apply this logic when the accused is a cop?

Also, it would seem that you are saying the law against perjury should never be enforced? Lets say someone falsely accused you of something and they testified falsely, sending you to prison for many years. Would you just dismiss their behavior as a little lie, like everybody does? That seems to be what you are saying, is it?

I'm just looking for some clarification, here. By your logic, we don't even need a criminal justice system because we all do things wrong and no one should face any consequences.

Also, by your logic, if a convicted drug dealer was accused a second time of dealing drugs, we should believe him because the fact that he has engaged in a certain type of behavior in the past, does not affect his future credibility? Is that what you are saying? Or, as I suspect, does your logic only apply to cops?

Or, are you saying it is only police officers who should be allowed to break the law and suffer no consequences?

I ask again, are you an officer and how many times have you committed perjury?

"Maybe. Perhaps defense lawyers will start looking into the backgrounds of all witnesses, not just those who are suppose to uphold the law, and determine if those witnesses could be uncredible as well because they have lied before, cheated on income tax reports, cheated on a spouse, fired from a job because they have stolen from an employer and on and on and on."

To be fair, wouldn't you advocate that the DA do the same for their witnesses?

Here is why I say I am nothing like this guy. In the past I found myself in a position where telling the truth was going to put me in a bad position and I was going to pay a price for doing so. I didn't even consider not telling the truth. That would have been the easy thing for me to do, but not the right thing. That is the difference. There are some of us who believe in being honest, even when it hurts us. People like this guy (and maybe you) rationalize the situation so you think its okay to lie....after all, everybody does it. That "everybody does it" argument is garbage. Everybody drives over the speed limit so why do we give people tickets? Your "Harper Valley" hypocrite comment is also way off base. I believe in forgiveness, even for the lowest scum in prison. But, I still believe in consequences for criminal behavior and in using common sense to protect the public. I can forgive this officer for what he did, but that doesn't mean he should still be an officer. Furthermore, if I was on a jury, his berhavior makes it more difficult for me to believe any officer. That's not really fair to other officers, is it? If you can't see the many reasons why this guy shouldn't be a cop, I just don't know...

It's not a question of having previously lied. As I've instructed many a student, the correct answer (I hope) to the question in court asking if you have ever lied is simple. "Never under oath." End of story. We have all lied (except for one lady who I would swear never did, but that's another story) but we all haven't lied under oath.:~)

And, another thing. You seem to be saying that every lie is equal. But, the law doesn't treat them that way. There are other lies that are considered criminal, besides perjury. For example, say I had a friend who escaped from prison and I allowed him to hide in my house. Say the police came to the door and asked if he was there. If I lied, I believe I could face criminal charges. Also, I believe under Texas' failure to ID law it is a criminal offense to lie to a police officer about one's identity. You really should contact your legislature and demand that these laws be repealed. If every lie is the same, isn't it hypocritical to prosecute some and not others. Under your logic, no lie should be a criminal offense. I'm sure your legislator would love to argue to his colleagues that these laws should be repealed because "everybody lies." Don't you think?

Don't you think advocating that one group should be allowed to break the law without consequence, while other groups are prosecuted for, what you consider to be the same behavior, is hypocritical. Who's the hypocrite?

To be fair, wouldn't you advocate that the DA do the same for their witnesses?

Yes I would.

7/31/2010 05:40:00 PM

Anonymous said...I just have to ask on more question: Are you seriously saying you believe this guy should still be allowed to be a police officer?

Are you an idiot or just can't read. I said in my original and again in a second post that I was not on his side in both of the incidents reported by Grits.

Oh, and one more, if you were sitting on a jury and this cop was testifying, would you send someone to prison on his word alone?

I would not send someone to prison on his word alone or for that matter, by any police officer on their word alone. Course I would not send someone to prison based on your word alone either. There would have to be corroborating evidence to support the individuals testimony.

According to a recent 9th District Appeals Court in Beaumont,Justices McKeithen and Kreger held in the majority that a defendant has the right to an instruction on every issue of evidence.

This right remains, Kreger wrote, "regardless of whether the evidence is strong, feeble, unimpeached, or contradicted, and even when the trial court thinks that the testimony raising the issue is not worthy of belief."

He wrote, "This statutory mandate is designed to insure that the jury, not the trial judge, will decide the relative credibility of all the evidence."

I applaud the efforts of the District Attorney here related to this officer, but it seems this ruling suggests it's the jury's decision to make the determination of credibility of the evidence, including testimony.

Though it means it may be up to the jury to determine credibility for any testimony presented, the decision doesn't mean that a DA is obligated to accept a given case, let alone present as a witness for the prosecution a known perjurer. Weak cases are regularly prevented from going toward prosecution - with the possible exception of Harris County where the DA seems to accept the idea that they may be good "practice" for new hires. The fact that an individual is a perjurer may actually ethically preclude the prosecution from using such an individual as a government witness. And aren't we all happy for that! :~)

ANONYMOUS....I applaud the efforts of the District Attorney here related to this officer, but it seems this ruling suggests it's the jury's decision to make the determination of credibility of the evidence, including testimony.

8/01/2010 08:56:00 AM-------------------------------------It's the juries decision IF the D.A. decides to have the cop testify. In criminal court, it is the DA or ADA who will determine which witnesses to call. The DA in this situation has decided, and I think rightly so, that this cop is so tainted that the defense would skewer him and thus any case his testimony was part of.

Reading the newspaper article it said "Stephens’ credibility problems could endanger cases when they go to trial, Tibbe argued, because her office is bound to disclose his history to defense attorneys."

If that is the case, does the district attorney have the duty to review all personnel and internal affair files of every officer (sheriff deputies, DPS, municpial officers of that county) before it accepts a case from that officer and make that information avilable to the defense or just this officer?

In contrast, the Houston police department now says its officers cannot talk with defense attorneys unless the DA first ok's it. If an officer knew something that was exculpatory for a defendant, wouldn't that officer be bound to tell the defense even if the DA said he/she could not talk to the defense attorney.

So we have one case where a DA is saying she has to tell the defense about an officers past and then we have another jurisdiction saying its officers cannot talk to the defense unless the DA first ok's it.

How screwed up is that?

One other point, the DA is not on record as saying her office plans to review all of the cases filed by this officer. Neither has the chief stated for the record that his office plans to review all C misdemeanors this officer filed in municipal court.

If this officer has a credibility problem, isn't this the right thing for the DA and chief to do, including a review of any video they still have archived?

Cops who lie under oath should be locked up in the pen. Period, the end. Leos are supposed to be held to a higher standard than the general public, and if you're a leo and can't live up to that higher standard, quit. Because if you lie under oath and send someone who's innocent to jail, hanging is too damned good for you. Bearing false witness makes you a worthless p.o.s. And to the guy who keeps trying to rationalize leos lying under oath: I hope you get caught on the stand lying some day, by someone who has the money to make you pay for it.

I didn't "assume" anything. I just expressed a wish concerning you and prison time. And if you think abbreviations are dirty, you'd best thank your intellectually stunted lucky stars that I didn't really let myself run with this one.

And I think, if I even have a "trait", it would be more likely to be zero tolerance for people like you. Idiots, in other words. For the sake of clarity, I'm calling you an idiot. Just want to make sure you get my drift here.

It's not whether or not you support the officer that makes you an idiot, it's the fact that you attempt to excuse perjury in any form by anyone that makes you an idiot. Lying under oath (especially when a man's freedom is on the line) is way up there on The Big List of Things That Make You Scum. Idiot.

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